EU States Responsible for Protection Against Deportation for Citizens of Other Member States

An Italian complained to the ECJ that Germany incorrectly extradited him to the United States. The ECJ decided this case in its judgment of April 10, 2018 (re C-191/16). The question before the court was whether a Member State must provide citizens of other member states protection against extradition.

Germany Extradited an European Citizen

The Italian plaintiff was accused of having participated in agreements restraining trade in the sale of marine hoses. During a transit stop in Germany during his flight from Nigeria to Italy, he was arrested. In accordance with the Extradition Treaty, he extradited to the States. There he was sentenced to two years imprisonment and a fine.

Italian Claims Damages for Illegal Extradition

The Italian claimed damages for this illegal extradition and when the German state denied his claim, he took it to court. The plaintiff was of the opinion that he is entitled to the constitutional ban (art. 16 II 1 GG) that all German citizens are entitled to. Since this did not happen, the German state violated European law and especially the general prohibition of discrimination. Since the LG Berlin saw the possibility of infringing on European law, and because no existing case law existed, it called the ECJ to decide this interim question.

ECJ finds European Law Applicable

The European Court of Justice held that European law is applicable when a European citizen refers to a treaty between the EU and USA when a European is arrested from another Member State in order to hand him over to a country requesting his extradition. The coincidence that the plaintiff was in transit in Germany is irrelevant.

Unequal Treatment of Citizen from another Member State permissible

The court further held that Germany may unequally treat a non-German European citizen under a constitutional provision and so permit extradition even though Germans are protected from being handed over. The precondition is, however, that this person's home has been given the possibility to arrest its citizen via a European warrant of arrest and his home country has taken no action.

Freedom of Movement Limited by Desire to Punish

ECF points out that a Member State may preferentially treat its own citizens by banning their extradition. This evidently leads to disadvantageous treatment of a European however it can be justified by the state's desire to prevent a delinquent of not being punished. The only exception can be that there is a less evasive action is possible. Such less evasive could be to deliver the delinquent to his home country if his country is competent to punish him.

In this case, Italy's consulate did not issue a European warrant of arrest therefore Germany's extradition is justified.